Supreme Court still resists pressure to televise proceedings

By Robert Barnes
Washington Post Staff Writer
Monday, April 19, 2010

As two Supreme Court justices submitted to their annual, gentle congressional interrogation last week, it seemed for the briefest of moments that there might be movement on the most perennial of questions about the court: whether its proceedings will ever be televised.

Responding to such a query, Justice Stephen G. Breyer said that, in fact, the U.S. Judicial Conference is considering a pilot program to examine the issue of cameras in federal courts.

"And that would be a pilot project in your courtroom?" Rep. Adam Schiff (D-Calif.) asked hopefully.

Moment over. "No," Breyer replied. "It wouldn't be in our court. . . . The judicial conference does not have to do with our court. It has to do with the lower court."

And so it goes, on and on. Congress pushes for televised proceedings, and the court listens politely and says, "No thanks." If anything, it seems less interested in making available to the public the sounds of the oral arguments that take place inside the Marble Palace.

Last week, C-SPAN said the court rejected its request, as well as from others, to release same-day audio of Monday's oral arguments in CLS v. Martinez. That First Amendment case tests whether a public university's anti-discrimination policy violates a religious student group's freedom of speech and exercise of religion.

The denial, which came without explanation, as is the court's custom, marks a shutout for the network this term. The court denied all seven requests, though it did release same-day audio in September of oral arguments in Citizens United v. Federal Election Commission, a case carried over from last term.

In every term since John G. Roberts Jr. became chief justice in 2005, the court has denied a greater percentage of requests. According to C-SPAN's records, the court has granted 10 of 34 requests in the past five terms. Because the court does not give reasons for such decisions, it is hard to know, for instance, why audio was released for the 2008 arguments in the landmark Second Amendment case District of Columbia v. Heller, but not for this year's Second Amendment arguments in McDonald v. City of Chicago.

Or why the audio request for Justice Samuel A. Alito's investiture in 2006 was denied, but cameras and a pool of reporters were invited for Justice Sonia Sotomayor's swearing-in.

Schiff complained to Breyer and Justice Clarence Thomas, who appeared before a House Appropriations subcommittee to present the court's proposed budget, that coverage by the media still relies on "sketches and audiotapes, which seems anachronistic. I actually think the change is inevitable."

Breyer said Schiff might be right, and in truth he is one of the justices least likely to make a full-throated argument for keeping things the way they are.

Breyer said he is aware that cameras could be "a big plus for the court and for the public. I think they'll see that we do our job seriously. We don't always get everything right, but we take it very seriously. People are well prepared; the lawyers are well prepared. The judges are trying to think out problems that are difficult problems. And for the public to see that, I think, would be a plus."

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